Akhil Reed Amar: “America’s Unwritten Constitution”

This month marks the 225th anniversary of the U.S. Constitution. Considered the “Supreme Law of the Land,” this document established America’s national government and guaranteed certain basic rights for its citizens. In a new book, a leading scholar on constitutional law celebrates this venerated text but says we must go beyond it to fully understand it. He argues there are common values and practices absent from the Constitution that help govern today’s society. As part of our ongoing “Constitution Today” series, Diane talks with Akhil Reed Amar about the unwritten principles that guide the interpretation of our founding document.

Guests

Akhil Reed Amar
professor of law and political Science at Yale University, periodically a visiting professor at Harvard, Columbia and Pepperdine Law Schools and author of four books, including "America’s Constitution."

Transcript

11:06:54

MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The Constitution of the United States established America's government, rule of law and guaranteed certain rights for its citizens. But Yale University Professor Akhil Reed Amar says the Constitution only begins to outline the rules that govern American society.

11:07:18

MS. DIANE REHMIn a new book titled "America's Unwritten Constitution," Amar says we must go beyond the written text to fully understand and faithfully follow it. As part of our Constitution Today series, we look at the meaning of the document and issues central to the political debate in this country.

11:07:41

MS. DIANE REHMAkhil Reed Amar joins me in the studio. You are welcome to be part of the program. Call us on 800-433-8850. Send us your email to drshow@wamu.org. Join us on Facebook or send us a tweet. Good morning to you, sir, it's good to have you here.

11:08:05

PROFESSOR AKHIL REED AMARIt's great to be here, thank you.

11:08:07

REHMI'm so glad to see you again. You and I appeared on a panel together. I was moderating that panel for a very esteemed group here in Washington so it's good to see you again. You write in your book that your fascination with the Constitution began the day you were born.

11:08:33

AMARThat's right. I was born in Ann Arbor, Mich. and at the time I was born, my parents were not United States citizens. Now it's true they weren't here illegally, they were here as students, as medical students at the University of Michigan.

11:08:49

AMARBut on the day I was born, this country, this Constitution made me a citizen. The first sentence of the 14th Amendment said, Akhil, you're a citizen just like everyone else born in this hospital on this day, black or white, male or female, whether your parents are married or not, whether they're citizens or not, you're here, you're an American. And I think I basically spent the rest of my life trying to repay that gift.

11:09:18

REHMAnd did they eventually become citizens?

11:09:23

AMARThey did, and it was a very proud moment for me to watch them do that. My wife grew up in India as did my parents and I watched her become a citizen, too. And I've actually participated in some swearing-in ceremonies for new citizens and it's an extremely inspiring event.

11:09:50

AMARThe only thing I can really analogize it to is a wedding. It has that same feeling.

11:09:54

REHMInteresting, tell us about what you title the "Unwritten Constitution." What do you mean by that?

11:10:06

AMARWell, in your intro, you actually, for example, mentioned the words rule of law and the Constitution is, of course, all about the rule of law, but one won't find that phrase rule of law in the written document. One won't find the words federalism, separation of powers, checks and balances, limited government.

11:10:31

AMAROne won't find the right of privacy in the document. You won't even find a reference to the Bill of Rights, they are state constitutions that have a caption called the Bill of Rights, but the federal Constitution doesn't. And yet all these things are obviously part of the Constitution. They're in between the lines, so to speak.

11:10:54

AMARBut that's not the only thing that the "Unwritten Constitution" is about. Supreme Court cases interpreting the Constitution provide one way through which a lens -- through which we read the text. There are important American traditions and customs that are part of our basic way of life and influence how we read the text.

11:11:20

AMARThe Declaration of Independence, for example, it's a central part of our tradition and it helps influence how we read. I talked about the day I was born so the sentence in the 14th Amendment says everyone born in the United States is a citizen of the United States. But you understand that in an even deeper way when you understand that everyone is born an equal citizen and that is a textualization of The Declaration of Independence that says we're all created, born equal.

11:11:52

REHMBut at the same time, you argue that sometimes when you read between the lines, the Constitution means the exact opposite of what it seems to say. What do you mean by that?

11:12:10

AMARAnd that's the edgiest thing. So yes, lots of people say, well, of course, Akhil it's about separation of powers and federalism and checks and balances of the rule of law. But when the plain meaning of a text is clear, you always have to follow that and I say, yes, but sometimes the meaning isn't as clear as you think.

11:12:34

AMARHere's the example that's really the kick in the head. A simple question and it's the question with which I really begin chapter one. Who presides at the vice president's impeachment trial? And when you read the text, the text says seemingly pretty clearly, the Senate tries all impeachments. And it also says that the vice president is the presiding officer of the Senate.

11:12:57

AMARAnd the text seems to say two plus two equals four, that the vice president presides at his own impeachment trial and that can't be right and it isn't right. But to see why it isn't right, we have to read the Constitution as a whole, see some larger principles. Like, here's another one.

11:13:13

AMARIt's connected to the rule of law. No man can be a judge in his own case. And the vice president can't preside over his own trial because that violates the rule of law idea that you mentioned at the beginning.

11:13:24

REHMHave we ever had the impeachment of a vice president?

11:13:29

AMARNo, we had the impeachment of a vice president turned president, Andrew Johnson, and that's how I begin the book because in the first moments of his impeachment trial, there was a question. The question was whether a man named Benjamin Franklin Wade--what a name, Benjamin Franklin Wade.

11:13:48

AMARWho was the president pro tem of the Senate could -- a senator, a leading senator, could actually be part of the impeachment tribunal because the argument was he's next in line for the presidency. If Johnson were convicted in this impeachment trial, he'd move into the White House and that gives him an impermissible conflict of interest.

11:14:10

AMARAnd the entire first day of the impeachment trial is taken up with this fascinating conversation among the senators about the proper written and unwritten principles here.

11:14:20

REHMLet's talk for a moment because it's a topic of worldwide conversation today of freedom to speak...

11:14:33

AMARGreat.

11:14:33

REHM...freedom to publish and where that limit moves in?

11:14:44

AMARYes, so our Constitution has a profound commitment to freedom of speech, robust, wide-open, uninhibited and it's not just in the words of the document. Yes, the 1st Amendment says Congress shall make no law abridging freedom of speech and of the press, but the text doesn't say that courts can't limit free speech.

11:15:09

AMARThe text doesn't say the president can't limit free speech. Until the Civil War, the text didn't say anything about states limiting free speech and even the 1st Amendment occurs, comes along, becomes part of the Constitution two years after the Constitution goes into effect in 1791.

11:15:24

AMARNow, here's my claim. Even before the text promised freedom of speech, the unwritten Constitution guaranteed it from day one, the very first meeting of Congress, even before the 1st Amendment has been adopted, Congress still can't abridge free speech.

11:15:44

AMARWhy not? Because here's one way of finding the unwritten Constitution, it's in between lines. The very structure of the Constitution is about free and fair elections, how incumbents can't rig the game in favor of themselves and against challengers, how the people are sovereign and governments are merely our servants and agents so they can't tell us what to say or what to think any more than the waiter at the restaurant can tell you, you know, or your butler can tell you what to say or think.

11:16:14

AMARAnd so it's implicit in the document as a whole between lines. And here's the second thing. It's just amazing what happened 225 years ago this month. We the people of the United States voted on the Constitution and we put it to a vote and we had a year-long conversation as a people about the Constitution and some were for it and some were against it. And there was no censorship.

11:16:38

AMARPeople were allowed to speak absolutely freely in favor of the document, absolutely freely against the document and so my claim is free speech is part of the very process by which the Constitution was adopted. It's baked into the cake even before the words of the 1st Amendment come along.

11:16:55

REHMHow do you feel then about the decision of the Supreme Court in the Citizens United case?

11:17:06

AMARI don't talk a lot about that case, it's a complicated one. Here are some of the complexities. On the one hand, we want free elections, fair elections and the idea is one person, one vote and corporations, for that purpose, aren't persons because they don't get to vote, real people get to vote.

11:17:29

AMAROn the other hand, my publisher, Basic Books, is a corporation. Random House is a corporation. The corporation for public broadcasting is a corporation and I wouldn't want the government to be able to shut down all those organizations if it didn't like what they were saying.

11:17:48

AMARSo I do think we need campaign finance reform. I think there are lots of ways of doing it that are different than the McCain-Feingold law that was at issue in Citizens United. And the basic idea that, we need to keep two ideas sort of central in mind, one person, one vote is one of them.

11:18:09

AMARAnd the other is we want to have very vigorous expression. Even if corporations don't have a full right to speak as corporations, I, as a sovereign citizen, have a right to hear things. I want to hear what people are saying. I want to be able to make up my own mind.

11:18:24

REHMYou've had one candidate in this race claim that corporations are people. So we have a different interpretation from one of the candidates in the presidential race. Akhil Reed Amar is Sterling Professor Law and Political Science at Yale University.

11:20:04

REHMAnd to our very first emailer who really gets at the heart of, I'm sure, what will and is a great debate in this country. It's from Frank in Hampstead, MD. He says: Your guest speaks of unwritten rules of the Constitution, so what about the original as judges in this country like Justice Scalia who believes the Constitution says exactly what it says and there is no unwritten wording to them?

11:20:46

DR. AKHIL REED AMARWell, even just -- Frank, it's a great question. Even Justice Scalia does believe in things like federalism and he's struck down laws on the basis of that unwritten principle of federalism and limited government and the rule of law. I say we are all textualists, not just Justice Scalia, I am too. I care a lot about the written word. I wrote a previous book all about the written Constitution. But at the same time that we are all textualists, we are all unwritten Constitution people too.

11:21:21

DR. AKHIL REED AMARYesterday, I was at an event at the National Archives with Clarence Thomas, the two of us. And Clarence Thomas was absolutely clear in his presentation that he believes in an unwritten as well as a written Constitution, that we have to go beyond the words sometimes to make sense of them. He, Justice Thomas, is a bigger believer in the Ninth Amendment, for example, I think, than is Justice Scalia. Justice Scalia is a little afraid or worried about the Ninth Amendment.

11:21:48

DR. AKHIL REED AMARThe Ninth Amendment is in the text, and it says there are non-textual rights. There are unenumerated rights. They are rights that aren't listed. And Justice Thomas is less afraid of that. And Justice Scalia says, let's not look at that part of the text, which invites us to look beyond the text. The text itself invites us to go beyond the text in certain ways, not in undisciplined ways, not anything goes. And Justice Scalia and I are as one on that.

11:22:14

DR. AKHIL REED AMARWe agree that you just can't make stuff up and call it the Constitution. But the words of the Constitution themselves gesture beyond themselves at key points like the Ninth Amendment.

11:22:25

REHMHere's an email from Gary. He's in Ann Arbor, MI. He says we often like to marvel at the Constitution as a brilliant document that remained effective and relevant for over 200 years. But it is really the brilliance of the American people who've continuously bent, twisted and adapted it to changing circumstances. More generally, it's the cohesiveness of the American nation and is by into a notion of common governance that makes the Constitution enduring, not the other way around.

11:23:16

AMARI think I agree with much of what he said and the brilliance of the American people and the way in which the written Constitution came from the people and has been received by the people. I'm not sure I would use the word bent. The word that I might highlight about the American people over time, maybe the most important word is amended. The framers of the Constitution, great as they were, made mistakes, original sin is the original sin of slavery.

11:23:47

AMARAnd we, the people of the United States, over the course of 225 years have made amends, we've made amendments for some of the sins of the Founding Fathers. That process began early with the adoption of a Bill of Rights. That came actually from the people, it bubbled up from the people in the very process of deciding to adopt the Constitution. The people met state by state and said, yes, but it's flawed. It doesn't have a Bill of Rights.

11:24:13

AMARAnd so it was immediately amended with the Bill of Rights. Five of those amendments actually used the words, the people, the first, the second, the fourth, the ninth, the tenth. And that's because it came up from the people. Now the problem is the people at the time didn't include slaves. And the Constitution was actually pro-slavery in various ways and it was almost the death of us. It almost destroyed the very project of self-government.

11:24:37

AMARAnd we had a Civil War, and in its wake, we, the people, added a 13th Amendment abolishing slavery and a 14th Amendment that makes me, born in Ann Arbor, a citizen the day I'm born and promises equal rights to blacks and to women. A 15th Amendment that says blacks are equal voters, and then later still a 19th Amendment doubling the franchise, bringing women into the process.

11:25:00

AMARAnd in my lifetime, let 18-year-olds vote, getting rid of poll taxes as a qualification for voting. Just think about the 19th Amendment for just a second because it's pretty stunning. And sometimes the Tea -- my friends in the Tea Party, they focus so much on the founders and the Founding Fathers and the sons of liberty that they miss the amending sons and daughters who did modify the system, made it an even more perfect union.

11:25:26

AMARAnd it started out being -- the 17th Amendment says we're going to have direct election of senators. So now, senators are going to be less dependent state legislators. They're going to be more willing to pursue nationalist projects. The 16th Amendment says we're going to have a national income tax, or redistribute national income tax. Sixteen plus seventeen and then the 19th, which is women suffrage, that's going to give you the new deal.

11:25:49

AMARThat's going to give you the great society, that's going to give you Obamacare, Franklin and Eleanor, Bill and Hillary, Barack and Michelle. You could call it the three women justices on the Supreme Court with the decisive margin in the Obamacare case and you can call it Obamacare, you could call it Pelosicare if you like. So I think it's actually about we, the people, growing and broadening. And part of what has happened when women get the vote is they do vote for more of a welfare state than before.

11:26:23

REHMYou also write than Brown v Board of Education was, quote, "perhaps the most iconic moment in the 20th century American judicial history. Talk about that.

11:26:38

AMARThat's occurring right at the time that my parents are arriving in Ann Arbor, MI. And it's remarkable to think about what the world look like before Earl Warren. He becomes chief justice in 1953 and the world is not really recognizable because actually our system had become out of sync with the Constitution. Here's what the world looked like before Warren. Jim Crow, massive segregation ruled the land.

11:27:09

AMARStates were grossly mal-apportioned. A lot of the Bill of Rights didn't apply against the states, prayer -- state written prayers in the public schools, precious few rights for criminal defendants. And those things really were in a -- no broad freedom of speech in many places. And the document does promise free speech. It does say equal. It does promise a regime in which states have to abide by fundamental rights. It does promise religious equality.

11:27:42

AMARSo, what has happened since Brown v. Board of Education? Since the Warren court is -- actually practices have begun to mash up finally with the promises in the text. So, our practices now do justice to the promises we made in the text.

11:27:59

REHMAnd yet, here you have the 19th Amendment allowing women to vote. But where are we on women's rights today? What about the equal rights amendment?

11:28:19

AMARWe have it. It's called the 14th Amendment. And even though it doesn't say sex, it doesn't say race either. It says -- that first sentence we keep coming back to, the one that made me a citizen on the day that I'm born. It says, we're all born citizens. There's a birth equality idea, whether we're born black or white, whether we're born male or female. And so, the 19th Amendment, for example, doesn't say in so many words that Sarah Palin has a right to run for president or Michelle Obama or Hillary Clinton for that matter.

11:28:58

AMARBut that's part of our unwritten Constitution. See, the 19th Amendment means even more than it says, full political equality for women and we have to read it, again, not just what the words say but the larger spirit and structure. Women as equal jurors, women -- I have a t-shirt that, you know, a women's place is in the house...and in the Senate.

11:29:19

REHMAnd, finally, before we open the phones, talk about the weight of Roe v. Wade which an awful lot of people have said lacks foundation in the written Constitution.

11:29:39

AMARSo, Roe was written by Justice Blackman. My brother actually clerked for Justice Blackman, held him in very high regard, as did I. But Roe was not a great opinion. It doesn't explain itself very well. And at its worst, does seem to be just kind of making stuff up. Now, that doesn't mean that its result is wrong. That means actually that reasons are important and it didn't do a perfect job of explaining its reasons.

11:30:06

AMARAnd that's the sort of thing that drives Justice Scalia bonkers, just when judges seem to be making stuff up. Here's one way, though, of thinking about the actual case, Roe v. Wade, in light of what we just been talking about, Diane. The law that was at issue in Roe was a law in Texas that had been adopted in 1850, before women had the vote at all. And it was a law that restricted women's liberty and women's equality and women's bodies, and frankly made it more difficult for women to be in the house and in the Senate and in the Supreme Court and to be lawyers and judges.

11:30:45

AMARAnd precisely because they were having babies maybe that they didn't want to have. And so, that law was adopted before women voted and imposed limitations on women as women, made it maybe more difficult for women once they've gotten the vote to repeal it because they were constrained by the law itself. So that law had certain unique defects from a 19th Amendment point of view. And I talk about that in a chapter called, America's Feminist Constitution.

11:31:14

AMARHere's the big, big, big point in that chapter that it's just striking. The 19th Amendment, in some ways, calls into question what went before. It basically said, listen, before 1920 the rules really weren't fair. Because it's not as if women suddenly became intelligent in 1920.

11:31:37

REHMRight, right.

11:31:38

AMARSo, when my son turns 18, he'll get to vote but I don't think it's unfair that at 13, he doesn't vote now because he's a child now and he'll be an adult later on. But with women, it wasn't as if they were children before 1920 and they suddenly became adults in 1920. So the very adoption of the 19th Amendment causes us to have a certain question about the previous exclusions. That was a wrong done, we now realize and we need to make amends for that wrong. And now, what does the making amends entail? That's what the chapter is all about exploring, just that question.

11:32:16

REHMAnd Roe v. Wade, do you see that being further explored and perhaps overturned?

11:32:25

AMARThe presidential election matters, and matters hugely. And Roe v. Wade is still intensely controversial in a way that Griswold v. Connecticut, for example, the contraception case is not. That is settled in a way that Roe is not. And what ordinary people think matters.

11:32:47

REHMAkhil Reed Amar, he's sterling professor of law and political science at Yale University. His new book is titled, "America's Unwritten Constitution: The Precedents and Principles We Live By." And you're listening to "The Diane Rehm Show." We're going to open the phones now, 800-433-8850. First to Palm Desert, CA. Good morning, Tim, you're on the air.

11:33:23

TIMThank you, Diane, and I hope you're all well.

11:33:26

REHMAll well, thank you.

11:33:28

TIMI see 60 words in the Preamble to the Constitution to form a more perfect union. That word form can mean to mold, shape or somehow alter an object or an institution. Our founding document was ordained and established to form a more perfect union, not to ossify the imperfections and I find it disconcerting how conservatives invoke the Constitution in an eternal effort to stymie the formation of a more perfect union because they're doing just fine, thank you, taking advantage of the imperfections.

11:34:12

TIMAnd they'll say that a judge should never consider the effect of a ruling. It's my understanding the founders, that the constitutional convention was convened in the first place because the founders were profoundly discontented with the results that obtained under the articles of confederation.

11:34:39

REHMAll right, sir, thanks for your call.

11:34:41

AMARI love the Preamble. And I think it's poetic. And even though this is a book about the unwritten Constitution, I think readers will find that there's -- that attention is lavished on the words of the Constitution as well. An unwritten Constitution has to supplement the written Constitution, never supplant it. And the Preamble, with its promise of justice and a more perfect union and common defense and the blessings of liberty to ourselves and our posterity, the intergenerational promise and project. So, I share the -- Tim, your love of the Preamble.

11:35:25

REHMAnd I must say, pointing out the use of the word form, which does suggest an ongoing process.

11:35:36

AMARAnd it created a continental regime, the likes of which had never been seen really in human history, the idea that democracy could work on a genuinely continental scale, bringing together people of different religions, ethnicities, different climatic zones, warm weather and cold weather people, different time zones. Nothing this audacious had ever happened before democracy and before the U.S. Constitution was limited to tiny city states.

11:36:04

REHMAll right, to Cleveland, OH. Good morning, Marie.

11:36:09

MARIEYes. Thank you for taking my call. I listen to you every day.

11:36:13

REHMThank you.

11:36:14

MARIEAbout the rights of speech in our Constitution, look at what has happened over, God knows, how many years and especially now. My mother told me 40 years ago, she said, our freedom of speech are going to take our freedoms away from us, and they have in so many -- it has in so many cases. As Tuesday what happened was that case in California with that book on YouTube. I mean, and look at what has gone on, the embassy.

11:36:55

MARIEEverything in the Middle East is on fire now. It's because of freedom of speech. I didn't agree with that nutcase but...

11:37:04

REHMAll right, thanks for calling. What do you think, Akhil?

11:37:07

AMARI think that the rest of the world, they sometimes not understand America's commitment to speech and democracy, but we cannot give those up, even if the rest of the world doesn't accept them. In the end, the Constitution was more democratic than anything that happened before and the world is becoming more like America and we should stick to what's worked.

11:37:32

REHMAkhil Reed Amar, his new book is titled, "America's Unwritten Constitution." More of your calls when we come back. Stay with us.

11:40:04

REHMAkhil Reed Amar is with me. He's a sterling professor of law and political science at Yale University. And if you've just joined us we're talking about his new book titled, "America's Unwritten Constitution." Here's an email from John who says, "Doesn't the gridlock of our government and the dysfunction in Washington show severe flaws in the Constitution?"

11:40:40

AMARJohn, I think it shows severe flaws in some of our current practices, most especially the filibuster rule in the Senate. Which -- you used a word, dysfunction. That's actually the exact word I use in the book. I say the filibuster is the most dysfunctional practice currently. Here's the good news. We could change the filibuster tomorrow. We could do it by simple majority vote in the Senate.

11:41:10

AMARAnd in one of the chapters of the book I explain how that could happen and why that's the right answer. Just in a nutshell, although the Constitution doesn't say in so many words, majority rule is the basic operating principle of the Senate. That's part of the unwritten constitution. It doesn't say -- the Constitution doesn't say in so many words that majority rule is the rule in the Supreme Court. But five beat four every time.

11:41:35

REHMBut each party in power wants to maintain that filibuster rule.

11:41:42

AMARAnd that's the problem.

11:41:43

REHMThat's the problem.

11:41:44

AMARBut we -- but we -- but we the people could get rid of it tomorrow. And I predict that when republicans next capture the Senate, and they will at some point, they will go nuclear, so to speak. They will adopt what's been called the nuclear option, the Constitutional option and have major filibuster reform. So they're more willing to do this. I think that if the democrats should do it first -- whichever party does it -- I don't want to be partisan about this -- should do it, but the republicans, I predict, will.

11:42:10

AMARAnd here's one reason that they will have from the unwritten constitution for doing it. You remember earlier I said free speech was part of the very process by which we adopted the Constitution. So is majority rule. In each state -- the people of each state adopted the Constitution in a special convention that acted by simple majority rule. And the Constitution doesn't say in so many words that that's the rule. But everyone in America understood that majority rule goes.

11:42:40

REHMWhy do you think republicans are more likely than democrats to get rid of the filibuster?

11:42:50

AMARThey have a more coherent caucus. They have a tighter ideological distribution. They are more willing to push certain arguments to the edge. This is the fundamental thesis of Norm Orenstein and Tom Mann's book, "It's Even Worse Than It Looks." The parties aren't quite symmetric in this regard.

11:43:16

AMARAnd because when they were last in power, they said this in order to get their judges through. John Cornyn, Orin Hatch and others wrote articles basically rattling the saber of the quote nuclear option.

11:43:28

REHMAll right, to Sergeant in Stantonsburg, N.C. Hi, there, you're on the air.

11:43:36

SERGEANT RUSSELLHello, this is Sergeant Russell in Stantonsburg, North Carolina.

11:43:40

REHMYes, sir.

11:43:40

RUSSELLIt's nice to speak to you. The author has ignored the origin of law, which is English common law as embodied in every single one of the states and as adjusted by statute in each one of the states. The Constitution is not the source of law nor is it the source of most of our important rights, the right of habeas corpus, trial by jury and so on. Thank you.

11:44:12

AMARI agree with the caller that common law is hugely important. And I promise you that the author didn't disregard that because the author is the author of the book. And the book talks a lot about common law. And, in fact, the very first thing that I begin with, this question of whether the vice president can preside at his own impeachment. It turns out that the book that explains that, of course, a person can't be a judge in his own case is none other than Blackstone's "Commentaries on the Laws of England," the common laws of England. And that was one of the -- it was the bestselling book in the colonies other than the Bible itself. And so I promise you when you look at the book, if you get a chance to do it, you'll find lots of stuff about the common law in every chapter.

11:44:58

REHMDoes that address your concerns, Sergeant?

11:45:01

RUSSELLWell, the actual fact of the matter is that common law continued to be consulted and continues to be consulted. It has -- there are many rights and remedies in common law that have been supplanted or may be supplanted by -- for instance, regulation. For instance, the idea of a nuisance is prosecutable under common law. But if you have a regulation that supplants it, then you can't complain of a nuisance.

11:45:40

AMARWell, I don't want to get into too much of the weeds here for a general audience. It is true that statutes are often allowed to modify the common law. But the common law exists as a basic backdrop to fill in the gaps where statutes are silent or the Constitution isn't clear and we need additional principles to help clarify.

11:46:03

REHMThanks for calling. We have an email from Jeff who is interested in your perspective on the right of same sex partners to marry as equal citizens under the Constitution.

11:46:23

AMARSo personally I favor same sex marriage and I have ever since I started thinking about the issue, which is 25 years ago, 27 years ago when I first was a law professor. I do explain, however, that what I personally favor isn't exactly the same thing as what judges should do. One chapter of the book is called "America's Lived Constitution." It's about our actual practices on the ground state by state. And the basic thought is when a certain right actually gets lived out by enough Americans in enough states then the Supreme Court codifies it nationally.

11:47:04

AMARSo, for example, at the founding no criminal defendant could take the stand in his own defense, not one anywhere. When states started to recognize that eventually the Supreme Court said that's a constitutional right. In Griswold v. Connecticut the Supreme Court said there's a right to use contraception and that's partly because every state except Connecticut recognizes that right. I do predict that in our lifetime enough states will recognize same sex marriage so that the Court will eventually come along and pronounce it -- that day may not be here immediately.

11:47:39

AMARThe Court did overturn itself when originally it said there's not a right to same -- to engage in same sex relationships in the Bowers v. Hardwick case. And that got overruled in a case called Lawrence v. Texas in part because American practices on the ground had changed. And they are changing dramatically for same sex marriage.

11:47:58

REHMAnd here's a knottier question from Alex in Kensington, Md. Good morning.

11:48:07

ALEXGood morning, Diane. I was curious -- well, it's always made me curious the modern interpretation of the Second Amendment seems to apply exclusively to rights of gun ownership. But when you're talking about the unwritten constitution neither the word gun nor any reference to actual ownership -- those words don't appear in the amendment. And I wanted to know what your guest thought about that.

11:48:32

AMARSo for the exact same reason that we talked about Griswold it doesn't say right of privacy. But that's actually in many state constitutions and statutes, common law and how we actually live our lives. And so the Supreme Court was correct, in my view, in Griswold to say that's a right. Guns in homes even if the words aren't in the Second Amendment they're in many state constitutions. They're in many state statutes.

11:48:58

AMARI, myself, don't own a gun. I'm not a gun person. But for better or worse America is a culture, is a society, where guns are, sort of, very important. So when it comes to unenumerated rights in effect I say the liberals want their sex. The conservatives want their guns. Let them both have what they want.

11:49:16

REHMWow, what a comment. Does that answer it, Alex?

11:49:20

ALEXYeah, you know, I have a second quick question.

11:49:23

REHMSure.

11:49:23

ALEXI wonder if your guest thinks that the Constitution will ever be amended again.

11:49:29

AMARYes, indeed. In the last chapter, actually, one aspect of the unwritten constitution is the constitution still to be written, the unfinished constitution, the constitution of 2121 or 2222. This month marks the 225 anniversary of the Constitution. Let's try to think 225 years forward what could it look like. I have some principles that I explain in the last chapter about what amendments are likely to pass and why.

11:49:59

AMARIn a nutshell, the amendments that are likely to pass have several features. One, both parties are going to need to support them because it's hard to get two thirds of the House, two thirds of the Senate and three quarters of the states that both parties be on board. Two, I think that certain amendments -- the ones that add to liberty and equality would fit the story thus far -- the trend line of our constitution.

11:50:21

AMARWe've had many amendments in the past. Almost none of them have taken liberty and equality. Most of them have added to liberty and equality. So I don't like anti-flag burning amendments, anti-first amendment amendments. I do like pro-equality, pro-liberty amends.

11:50:36

REHMThen where are you on current voter ID laws, some of which may actually end up in the Supreme Court even prior to the election.

11:50:51

AMARSo the original constitution does not have the phrase right to vote. And partly it's because of slavery. They couldn't talk about race. And they couldn't talk about voting because that was just a toxic issue because they didn't deal with race and slavery when they could have. But we have now amendment after amendment that talks about a right to vote. It's in Section 2 of the 14th Amendment and in the 15th Amendment and in the 19th Amendment and in the 24th Amendment and in the 26th Amendment.

11:51:19

AMARAnd now we have a whole -- and this is what was mentioned earlier about a whole project of amendments, about the people over time making the Constitution a still more perfect union. That's what we've promised. And state on the ground today -- this year are not abiding by that.

11:51:37

REHMSo what do you see happening with voter ID?

11:51:43

AMARI would love it if courts pushed back on these efforts to suppress the franchise -- we had an amendment in my lifetime saying no poll taxes for voting. Well, if money is required to get a photo ID and if you have to go take two bus rides to get the thing and stand in a line all day, that's a poll tax in order to exercise this basic right to vote.

11:52:13

REHMTo Santa Rosa Beach, Fla. hi there, Warren.

11:52:19

WARRENHello.

11:52:20

REHMGo right ahead, sir.

11:52:22

WARRENI have a -- I first encountered you, Dr. Amar, in your paper -- 1988 paper, "Philadelphia Revisited: Amending the Constitution (word?) Article Five." And it's got a lot of interesting ideas. I have a quote by James Madison that supports what you're saying, I think. "In the Constitution, the ends of government were particularly enumerated. But all the means were not nor could they all be pointed out without making the Constitution a complete code of laws." An example which relates back to your amending the Constitution, there's a dearth of information on constitutional convention or a convention to propose amendments. I'm interested in your thoughts on that.

11:53:18

AMARI share your biggest idea which is precisely because the Constitution is short. I keep referring to it as the terse text. There are all sorts of things that it can't specify. Now, why did it need to be terse? So that ordinary people could read it and understand it and decide whether they were for it or against it 225 years ago. And so that ordinary people today can reread it and decide whether they like it or not, whether it needs amendment or not. So it has to be short in order to be a document accessible to the public. And because it has to be short that does mean that it's not going to specify everything, that there are going to be implicit principles that complete the project.

11:54:01

REHMAnd you're listening to "The Diane Rehm Show." We have an email from Fred who says, "What about the electoral college versus direct elections?"

11:54:15

AMARGreat question, Fred. I talk about that in my last chapter. And I talk about -- when I was mentioning what amendments were likely to get in the past I mentioned two principles. Both parties have to be in favor of it and it should ideally add to liberty or equality in order to be a fulfillment, to be a proper continuation of the project thus far. Here's the third principle. Things that -- amendments to the Constitution are likely to work if they've been road tested by the states.

11:54:45

AMARStates are great laboratories of experimentation. Almost everything in the U.S. Constitution was first tried by states. States originally had constitutions and after the American Revolution and the federal government -- the federal constitution copied them bi-cameralism, three branches of government, independent judiciary. The Bill of Rights that was an idea borrowed from state constitutions. States had eliminated slavery one by one and then the U.S. Constitution did. States had given women suffrage, some of them, and then the U.S. Constitution did.

11:55:14

AMARNow, here's the point about states. We have 50 states and they have governors who look a lot like presidents. And none of them are picked with an electoral college. We don't have an electoral college in California, in Texas, in Pennsylvania, in New York, in any of the states. One person, one vote, that's how we do it in California.

11:55:31

AMARYou put all the votes in the drum for governor, you count them and if it's close you recount them carefully. And if that's what works for states, that becomes a very sensible idea for the United States. Once again, using a concept that's been road tested by the states. In the last chapter I explain two different ways we could actually get to direct election of the president without a formal Article 5 amendment.

11:55:53

REHMAnd finally if you'd care to speak to the 2000 election and the fact that the Supreme Court decided who would our president. How did you react within or referencing the U.S. Constitution to that decision?

11:56:18

AMARI wrote an op-ed in the L.A. Times saying -- it was titled, "Should We Trust Judges?" And I began by saying I'm a huge admirer of the Supreme Court and many of it justices, whom I consider friends. But that in its past the Supreme Court has made some big mistakes. And I thought that Bush v. Gore was another one of them.

11:56:39

AMARI actually said I thought Dred Scott was a bad case and Plessy v. Ferguson was a bad case. I said I thought Roe v. Wade was very badly reasoned, something that I repeated today. Whether you agree with the result or not, it was not well written. And so I was very critical of Bush v. Gore. Because in our system, presidents are supposed to pick judges, judges aren't supposed to pick presidents. And then I gave a lecture at the University of Florida explaining in detail what I thought Bush v. Gore got wrong.

11:57:07

REHMAkhil Reed Amar, a sterling professor of law and political science at Yale University. His new book is titled, "America's Unwritten Constitution." Good to see you.

Topics + Tags

Comments

Most Recent Shows

Thursday, Dec 08 2016The rise of digital was supposed to mean the death of things like printed books, vinyl records and brick and mortar stores. But recently, the market for analog goods and ideas has actually increased. The revenge of analog.

Thursday, Dec 08 2016The son of Donald Trump's pick for national security adviser has resigned for spreading a fake news story that led to an armed confrontation at a D.C. restaurant. The danger of fake news and how to combat it.

Wednesday, Dec 07 2016Donald Trump has called climate change "a hoax". But this week he met with Al Gore, a leader in the fight against global warming -- raising questions about Trump's position on the issue. For this month's Environmental Outlook: a look at Trump's priorities on energy and the environment.

Wednesday, Dec 07 2016The President-elect’s pick of retired neurosurgeon Ben Carson to head the Department of Housing and Urban Development could signal a dramatic shift for the agency. Join us to discuss federal housing policies and how they may change.